122 Minn. 301 | Minn. | 1913
Appeal by defendant from an order denying his motion for a new-trial after verdict against him for $3,500.
Prior to January, 1909, and later, the council of the city were concerned in acquiring a site for a fire department repair shop. Its selection was entrusted to a committee of five aldermen. Defendant, who had been chief of the department since 1898, sat with the committee and accoanpanied the members when they were investigating the desirability of sites, which occurred on several occasions. For convenience, a subcommittee of the five was selected to look up a site, of which defendant was a member and acted as such. Among other sites considered was one near the Cataract Engine House, known as the Chute property; but its price was found to be $150' per front foot, which was deemed excessive, defendant concurring in this conclusion. On February 14, the day following defendant’s appointment on the subcommittee, an advertisement appeared offering for sale, for $6,000, the site which was finally selected by the committee and purchased by the city. It was near the Chute property, and the price asked for it was less than half the price of the former. Between the date last stated and March 1, following, defendant entered into negotiations with the owner for the purchase of this property for himself which resulted in a contract for its purchase at the price stated, payable $100 cash, $400 upon the execution of the contract of sale, and $5,500 in monthly instalments
“March 9, 1909.
“Received from Sarah A. Guile One Hundred Dollars earnest money on account of purchase of lot 5 and 24 ft. of Lot 4, Block 40, St. Anthony Falls, in consideration of the further payment of Sixty-Four Hundred Dollars on or before June 1st, 1909, subject to the approval of a certain contract entered into March 3rd, 1909, between James R. Canterbury and R. M. Newport.
“J. R. Canterbury.”
On March 21, according to defendant’s claim, his son, Ralph Canterbury, was at Mrs. Guile’s home, and remarked to her:
“Real estate’s looking up on the east side * * * Dad said that Chute Bros, are asking $150 a front foot for the property across from Cataract engine house; that they were looking at it for a site for the new repair shop.”
Whereupon, it is asserted, it occurred to Mrs. Guile that the property purchased by her from defendant might be available for the repair shop, so that on March 22, she, of her own motion and without suggestion from anyone, wrote the following:
“Minneapolis, 3-22-1909.
“To the Committee on Fire Department of the City Council:
“Gentlemen:
“I will sell to you lot 5 and 24 ft. of lot 4, block 40, St. Anthony Falls, for the sum of $100 dollars per front foot or $9,000 dollars.
“Respectfully,
“Sarah A. Guile,
“615 6th St. S. E.”
The trial court’s conduct on the trial is criticised, and exceptions were taken and are now urged to the admission, exclusion, and refusal to strike out testimony. It is, furthermore, claimed that the evidence is insufficient to sustain the verdict. Outside of matters of practice, however, the questions involved are but few and simple, and may be considered collectively. The ordinances are merely cumulative. The rights of the city, if any, rest upon a more substantial basis than local law, and we should reach the same result in their absence. The city’s contention that defendant’s purchase was pursuant to a scheme to sell the property to it, and that the Guile transaction was a mere subterfuge, must be sustained as a matter of'law, and, had the court so instructed, we should have sustained the ruling. The evidence to the contrary is so unreasonable and im
The rule applies to officers and agents of municipal corporations. Bjelland v. City of Mankato, supra; Young v. City of Mankato, supra; Currie v. School District No. 26, supra; Stone v. Bevans, supra; Bay v. Davidson, supra; Toronto v. Bowes, supra, affirmed 6 Grant Ch. 1; 2 Dillon Mun. Corp. (5th ed.) § 772. And in such application it is re-enforced by the gravest considerations of public policy. See Currie v. School District No. 26, supra; Young v. City of Mankato, supra; Independent School District v. Collins, 15 Idaho, 535, 98 Pac. 857, 128 Am. St. 76; Cheney v. Unroe, 166 Ind. 550, 77 N. E. 1041, 117 Am. St. 391; Bay v. Davidson, supra; Toronto v. Bowes, supra, 531; Bowes v. Toronto, supra, 115. In such case, also, as where only private relations are concerned, the rule exists independently of statute (Young v. City of Mankato, supra, 6; Toronto v. Bowes, supra; Bay v. Davidson, supra; Davidson v. Guilford, 152 N. C. 436, 67 S. E. 918) and its force is not lessened nor its scope restricted by statutory declarations thereof (Independent School District v. Collins, supra; Bay v. Davidson, supra; 2 Dillon, Mun. Corp. 5th ed. 772, p. 1142).
Nor can the proscribed transaction be ratified by the municipality, ■except by the most unqualified acceptance' by the duly constituted authorities, with full knowledge (Currie v. School District No. 26, supra), and then only to the extent of rendering the municipality liable, as upon implied contract, for the reasonable value of the service or property received (see our cases cited above; 2 Dillon, Mun. Corp. (5th ed.) p. 1149), which, of course, cannot include profits made by the officer.
The instances of application of the rule under- consideration to
Other assignments of error raise the more serious question of the court’s reflections upon the credibility of witnesses. We are not agreed upon whether the court’s action in this regard would constitute reversible error were the case one requiring submission to a jury, a majority holding it was not; but we are unanimously of opinion, and are constrained to say, that it was a perilously near approach to the line. If the integrity of trial by jury is to be preserved, as it must be, the credibility of witnesses should be left entirely to the jury; and insinuations, comments, or suggestions by the court indicative of belief or unbelief in their testimony cannot be tolerated.
Order affirmed.